Researcher who was the subject of the stories claims he was not involved.

A few weeks ago, we brought you the story of Retraction Watch, a blog that follows issues of research misconduct. One of the blog's subjects, Anil Potti, had been forced to leave Duke University under a cloud of suspicion that included accusations of falsifying research. A number of Retraction Watch's critical blog posts about Potti vanished recently, victims of a spurious DMCA takedown by a site based in India that had copied the original material from Retraction Watch and then claimed it as its own.

There have been a number of interesting developments since then. Most notably, the site in India (newsbulet.in) has been taken down and its DNS entry has been scrubbed.

Meanwhile, Potti himself has apparently been in touch with the people behind Retraction Watch, saying he wasn't behind the takedown. According to Potti, someone else had hired the reputation manager who acted on his behalf, and the service was terminated months ago anyway. But in the meantime, a second blog has been targeted with a Potti-focused DMCA takedown. Its author claims the missing post was little more than a collection of links, and he doesn't think it could have violated anyone's copyright.

Most of the blog posts on Retraction Watch have been restored. When the posts were first pulled, blogger Ivan Oransky used an automated counter-notice generator to alert his host to the fact that the DMCA takedown was spurious. He told Ars that no further action had been necessary; after two weeks, he received notice that the 10 posts that had been pulled were being restored. Nevertheless, after being targeted by an anonymous plagiarist—who has since disappeared—Oransky still only has 80 percent of his content back

Whoever was behind this effort can console themselves with the knowledge that the material was offline for two weeks and the fact that its rightful creators dealt with a lot of hassle in the intervening time. But if their goal was to take the spotlight off Potti, their actions have backfired spectacularly.

UPDATE: Ivan Oransky has let us know that the final two posts have been restored.

27 Reader Comments

I'm glad that the content is back online, but I'm just not able to chalk it up as a "win". There are too many publicized abuses of the DMCA takedown process, and no action to create consequences for those who are trying to game the system. What we need isn't to get content back online (well, yes, we need that too), but to create disincentives to make it unpalatable for someone to try to use the system this way in the first place.

I'm glad that the content is back online, but I'm just not able to chalk it up as a "win". There are too many publicized abuses of the DMCA takedown process, and no action to create consequences for those who are trying to game the system. What we need isn't to get content back online (well, yes, we need that too), but to create disincentives to make it unpalatable for someone to try to use the system this way in the first place.

Agree and that is the biggest problem with the DMCA take-down system, it's way too easy to abuse.

Why only 80%? If he filed a DMCA counter-notice, and no lawsuit came to pass, then he should get all of it back. Otherwise, the site is in violation of the DMCA's safe harbor provisions and can be sued.

undervillain wrote:

I'm glad that the content is back online, but I'm just not able to chalk it up as a "win". There are too many publicized abuses of the DMCA takedown process, and no action to create consequences for those who are trying to game the system. What we need isn't to get content back online (well, yes, we need that too), but to create disincentives to make it unpalatable for someone to try to use the system this way in the first place.

What would you suggest? I'm being 100% serious; how do we solve this? Generally, people just say "get rid of the DMCA claim system entirely," which doesn't constitute a solution. The DMCA claim system exists to make safe-harbor possible, and without safe-harbor, every web-service that hosts content created by users can be sued for anything that infringes someone's copyrights.

Of course, some would then say that content hosts should be granted safe harbor period. That's little more than a license to infringe, because part of the DMCA claim system is the ability to get contact data for the people who uploaded the data. Without the ability to get contact data, you're effectively saying that people can infringe copyright just by using a third-party web-host.

What exactly is the solution here? How do you weed out the bad users of the system, while still making the system work? You can't make the content host verify every single claim manually by actually looking at the content, for two reasons. One is obvious: is a huge time sink. The other is that hosts aren't equipped to make this kind of determination. Copyright law is subtle sometimes, and they're not copyright lawyers.

A penalty-based system sounds like it might work; after some number of "malicious" takedown notices, a particular entity loses the right to use the takedown system. The problem here is the one from above: how do you determine that a notification is "malicious". What if the notice was filed in good faith, but it isn't considered infringement? Only courts can determine whether a particular bit of infringement falls under fair use, and not all cases are clear-cut. Do we really want to give YouTube the power to decide this kind of thing?

One simpler fix is to allow counter-notices to restore the content in 3 days time, instead of taking 14. After which point, a lawsuit must be filed in order to get the content removed again.

This is what you get when corporations are allowed to buy legislation and have pocket legislators. UMG, among others, has used this endlessly to take down anything that even matched a title keyword, leaving it to the media creator to get it reinstated.

What exactly is the solution here? How do you weed out the bad users of the system, while still making the system work? You can't make the content host verify every single claim manually by actually looking at the content, for two reasons. One is obvious: is a huge time sink. The other is that hosts aren't equipped to make this kind of determination. Copyright law is subtle sometimes, and they're not copyright lawyers.

A penalty-based system sounds like it might work; after some number of "malicious" takedown notices, a particular entity loses the right to use the takedown system. The problem here is the one from above: how do you determine that a notification is "malicious". What if the notice was filed in good faith, but it isn't considered infringement? Only courts can determine whether a particular bit of infringement falls under fair use, and not all cases are clear-cut. Do we really want to give YouTube the power to decide this kind of thing?

One simpler fix is to allow counter-notices to restore the content in 3 days time, instead of taking 14. After which point, a lawsuit must be filed in order to get the content removed again.

Even 3 days could be an eternity in a high-tempo environment (such as news), but it's better than 14.

The problem with a "six strikes" policy for bad-faith takedowns is identifying the entity issuing the takedown. As we saw in this story, it's not hard to make a drive-by takedown with a fake site that can vanish and re-appear elsewhere under a new identity and issue the same takedown notices again. I don't know the intricacies of the process, but does it require positive ID of a natural person to initiate a takedown (in the same way it takes a natural person to file a patent)? If so, perjury or similar charges might work. If not, the ease of creating shell corporations could turn this into an endless game of whack-a-mole.

This is what you get when corporations are allowed to buy legislation and have pocket legislators. UMG, among others, has used this endlessly to take down anything that even matched a title keyword, leaving it to the media creator to get it reinstated.

The DMCA explicitly provides for penalties in the case of 'bad-faith' takedown notices. If someone affected wanted to sue them over it, they'd have grounds to make their case.

What exactly is the solution here? How do you weed out the bad users of the system, while still making the system work? You can't make the content host verify every single claim manually by actually looking at the content, for two reasons. One is obvious: is a huge time sink. The other is that hosts aren't equipped to make this kind of determination. Copyright law is subtle sometimes, and they're not copyright lawyers.

A penalty-based system sounds like it might work; after some number of "malicious" takedown notices, a particular entity loses the right to use the takedown system. The problem here is the one from above: how do you determine that a notification is "malicious". What if the notice was filed in good faith, but it isn't considered infringement? Only courts can determine whether a particular bit of infringement falls under fair use, and not all cases are clear-cut. Do we really want to give YouTube the power to decide this kind of thing?

One simpler fix is to allow counter-notices to restore the content in 3 days time, instead of taking 14. After which point, a lawsuit must be filed in order to get the content removed again.

Even 3 days could be an eternity in a high-tempo environment (such as news), but it's better than 14.

The problem with a "six strikes" policy for bad-faith takedowns is identifying the entity issuing the takedown. As we saw in this story, it's not hard to make a drive-by takedown with a fake site that can vanish and re-appear elsewhere under a new identity and issue the same takedown notices again. I don't know the intricacies of the process, but does it require positive ID of a natural person to initiate a takedown (in the same way it takes a natural person to file a patent)? If so, perjury or similar charges might work. If not, the ease of creating shell corporations could turn this into an endless game of whack-a-mole.

But, as noted, responding forcefully to a takedown notice made in bad faith requires being able to identify who filed the notice. Perhaps takedown notices should require enough identification to address a legal summons?

This is what you get when corporations are allowed to buy legislation and have pocket legislators. UMG, among others, has used this endlessly to take down anything that even matched a title keyword, leaving it to the media creator to get it reinstated.

The DMCA explicitly provides for penalties in the case of 'bad-faith' takedown notices. If someone affected wanted to sue them over it, they'd have grounds to make their case.

You've made a couple of assumptions here. Firstly, you're assuming the bad-faith notices came from someone in the US. That certainly doesn't appear to be the case in the situation discussed. Secondly, you have assumed that an individual has the resources to successfully sue a large corporation. Yes, it may be something that consumer groups will eventually back - but at the moment all you're doing is saying "Why don't you take my house while we're at it".

Finally, you're assuming that courts (and appeal courts, because there is absolutely no doubt that any win by the plaintiff would be appealed) will actually work in support of the individual against the corporation. In the US, that appears increasingly unlikely every day. The other issue for the courts is whether the DMCA adequately describes "bad faith". I'm betting no.

This is what you get when corporations are allowed to buy legislation and have pocket legislators. UMG, among others, has used this endlessly to take down anything that even matched a title keyword, leaving it to the media creator to get it reinstated.

The DMCA explicitly provides for penalties in the case of 'bad-faith' takedown notices. If someone affected wanted to sue them over it, they'd have grounds to make their case.

You've made a couple of assumptions here. Firstly, you're assuming the bad-faith notices came from someone in the US. That certainly doesn't appear to be the case in the situation discussed.

Well, we could change the rules to require that filing a take-down notice needs sufficient legal standing to appear in a US court. And therefore sufficient legal standing to be sued in a US court. Legal standing of course requires identification.

Otherwise, you can't issue a DMCA takedown notice.

Postulator wrote:

Secondly, you have assumed that an individual has the resources to successfully sue a large corporation. Yes, it may be something that consumer groups will eventually back - but at the moment all you're doing is saying "Why don't you take my house while we're at it".

Courts are the only system we have to make a determination as to whether infringing material actually is infringing. So what else are you going to do? Assume that, if a counter-notice was filed that the takedown wasn't genuine?

Postulator wrote:

Finally, you're assuming that courts (and appeal courts, because there is absolutely no doubt that any win by the plaintiff would be appealed) will actually work in support of the individual against the corporation. In the US, that appears increasingly unlikely every day. The other issue for the courts is whether the DMCA adequately describes "bad faith". I'm betting no.

Well that's a nowhere argument. If you're going to assume that the entire legal system is a priori unfair... then any system would be no less unfair. Whatever system you put forth is going to be subject to whatever influences you charge the current system with. Unless you're saying that we should have no system and just let people infringe willy-nilly online, or remove safe-habor entirely and watch most of "Web 2.0" be sued into oblivion.

At some point, you're going to have to build some system.

The DMCA doesn't need to define "bad faith." The legal concept of mala fides is well-defined in common law: it means you're knowingly full of shit.

That being said, good faith is the general assumption. So you would need to provide positive evidence of bad faith. Which in copyright cases is not so simple unless the bad faith comes from a question of standing (ie: claiming to represent the copyright holder when you really don't, such as in the above anonymous filer).

That being said, good faith is the general assumption. So you would need to provide positive evidence of bad faith. Which in copyright cases is not so simple unless the bad faith comes from a question of standing (ie: claiming to represent the copyright holder when you really don't, such as in the above anonymous filer).

Considering how often the whole of humanity has violated every other law, yet NOT ONCE did any actionable bad DMCA takedown, I think the path is clear. The next Pope must come from the ranks of DMCA senders.

The problem with a "six strikes" policy for bad-faith takedowns is identifying the entity issuing the takedown.

One way would be a deposit-system. To file a DCMA-complaint you have to put $2000 (arbitrary sum) in escrow. If the complaint goes through unchallenged, you get it back immediately. If it is challenged, some court action will have to follow. The downside of this is that if you are a smaller fish with a legitimate claim, making a couple of legitimate DCMA-takedowns will cost you a lot of money upfront.

Another way would be that only lawyers registered with whoever manages these DCMA-takedowns can issue one. Downside would be that the process gets expensive, as lawyers don't work for nothing. And we pass more money to lawyers, which isn't something I'd like.

That being said, good faith is the general assumption. So you would need to provide positive evidence of bad faith. Which in copyright cases is not so simple unless the bad faith comes from a question of standing (ie: claiming to represent the copyright holder when you really don't, such as in the above anonymous filer).

Considering how often the whole of humanity has violated every other law, yet NOT ONCE did any actionable bad DMCA takedown, I think the path is clear. The next Pope must come from the ranks of DMCA senders.

Not once did any actionable bad DMCA takedown... what? You didn't finish that sentence there. Were you suggesting that nobody who's had a DMCA claim filed against them has filed a perjury suit against the original filer? Because I know of at least one case where someone was very willing to go through with it, and only didn't because the other party acquiesced to a set of demands.

So I have no idea what you're claiming here. If people haven't availed themselves of their legal rights... how does that change whether or not they have those rights?

According to Potti, someone else had hired the reputation manager who acted on his behalf, and the service was terminated months ago anyway.

I have nothing to do with the attempt on your life!

I have a friend who knew of a reputation manager and he explained to him that you had hurt my reputation, and I wouldn't be unhappy if you were involved in an accident -- like falling out of a boat while your feet were encased in concrete.

According to Potti, someone else had hired the reputation manager who acted on his behalf, and the service was terminated months ago anyway.

I have nothing to do with the attempt on your life!

I have a friend who knew of a reputation manager and he explained to him that you had hurt my reputation, and I wouldn't be unhappy if you were involved in an accident -- like falling out of a boat while your feet were encased in concrete.

See. It had nothing to do with me.

And anyway, my friend hasn't talked to the reputation manager in months.

That being said, good faith is the general assumption. So you would need to provide positive evidence of bad faith. Which in copyright cases is not so simple unless the bad faith comes from a question of standing (ie: claiming to represent the copyright holder when you really don't, such as in the above anonymous filer).

Considering how often the whole of humanity has violated every other law, yet NOT ONCE did any actionable bad DMCA takedown, I think the path is clear. The next Pope must come from the ranks of DMCA senders.

Not once did any actionable bad DMCA takedown... what? You didn't finish that sentence there. Were you suggesting that nobody who's had a DMCA claim filed against them has filed a perjury suit against the original filer? Because I know of at least one case where someone was very willing to go through with it, and only didn't because the other party acquiesced to a set of demands.

So I have no idea what you're claiming here. If people haven't availed themselves of their legal rights... how does that change whether or not they have those rights?

It suggests that those rights may be incredibly difficult to use, and further suggests that there is a strong imbalance baked into the DMCA.

The DMCA needs to make it as easy to sue and prevail over someone acting in bad faith as it does getting infringing content taken down in the first place.

This is what you get when corporations are allowed to buy legislation and have pocket legislators. UMG, among others, has used this endlessly to take down anything that even matched a title keyword, leaving it to the media creator to get it reinstated.

The DMCA explicitly provides for penalties in the case of 'bad-faith' takedown notices. If someone affected wanted to sue them over it, they'd have grounds to make their case.

Yes, the DMCA provides for penalties in the case of bad-faith takedowns. Most of the fines vary from $500 to $10,000, plus lawyer fees and things like "lost profits", "loss of good will", etc. which would come to exactly $0 in this situation. They'd come to the same amount for things like the "Dancing Baby" Youtube clip, or for just about any other bad faith DMCA takedown against an individual.

Meanwhile the penalty for an infringer is $50,000 or $1 per copy, whichever is greater. Plus all of the above. No imbalance there.

And this ignores the difficulty of actually prosecuting a case against a large company (or, in this case, a small company located outside the jurisdiction of the USA).

As the local news stated, he got work at the Cancer Center of North Dakota. Which is he is not listed on their website (still) due to:

"Although there is no mention of Potti on the Cancer Center’s website, that’s only because of web design problems, Noyes said."

Which...is still not updated. But their web design and host http://www.brandlogicmwd.com/ gets a invalid hostname. Although their whois shows they are good until oct-2013 with godaddy. Their contact address is out of town on some acerage. Probably business out of their home. It probably would take a few minutes to update him.

Tho it is registered by an Ashely Johnson, who had skin cancer and runs a cancer foundation at http://copewell.org.

Why only 80%? If he filed a DMCA counter-notice, and no lawsuit came to pass, then he should get all of it back. Otherwise, the site is in violation of the DMCA's safe harbor provisions and can be sued.

undervillain wrote:

I'm glad that the content is back online, but I'm just not able to chalk it up as a "win". There are too many publicized abuses of the DMCA takedown process, and no action to create consequences for those who are trying to game the system. What we need isn't to get content back online (well, yes, we need that too), but to create disincentives to make it unpalatable for someone to try to use the system this way in the first place.

What would you suggest? I'm being 100% serious; how do we solve this? Generally, people just say "get rid of the DMCA claim system entirely," which doesn't constitute a solution. The DMCA claim system exists to make safe-harbor possible, and without safe-harbor, every web-service that hosts content created by users can be sued for anything that infringes someone's copyrights.

Of course, some would then say that content hosts should be granted safe harbor period. That's little more than a license to infringe, because part of the DMCA claim system is the ability to get contact data for the people who uploaded the data. Without the ability to get contact data, you're effectively saying that people can infringe copyright just by using a third-party web-host.

What exactly is the solution here? How do you weed out the bad users of the system, while still making the system work? You can't make the content host verify every single claim manually by actually looking at the content, for two reasons. One is obvious: is a huge time sink. The other is that hosts aren't equipped to make this kind of determination. Copyright law is subtle sometimes, and they're not copyright lawyers.

A penalty-based system sounds like it might work; after some number of "malicious" takedown notices, a particular entity loses the right to use the takedown system. The problem here is the one from above: how do you determine that a notification is "malicious". What if the notice was filed in good faith, but it isn't considered infringement? Only courts can determine whether a particular bit of infringement falls under fair use, and not all cases are clear-cut. Do we really want to give YouTube the power to decide this kind of thing?

One simpler fix is to allow counter-notices to restore the content in 3 days time, instead of taking 14. After which point, a lawsuit must be filed in order to get the content removed again.

Brainstorming here, so there's likely to be logical loopholes involved:

Set up a court or department that has access to the Copyright Registrars information. Alleged copyright holders who wish to submit a takedown notice would submit it to the office who would then verify that the person submitting is the legal copyright holder. Ideally, the department would contain the schooling and power to determine Fair Use and deny any takedown notices that fall under that category. If the submitter passes as the legal copyright holder and the claim passes as actual infringement, the department then forwards on the claim to the content host for takedown.

The first big problem with this idea is of course corruption. Any time an entity exists, then they can be bought or in some way biased. But that is going to be the case regardless of any solution that can be put forth (at least, it's astronomically likely). The other problem would be getting the proper staffing and education for the staff to handle such a job as this. Again in my ideal, the staff would all be thoroughly schooled on copyright law, used to dealing with the registrars and heavily schooled in Fair Use and its determination. That's a lot of specialty information to entrust in any number of people.

The main thing here is, I think we need to shift the burden of proof to the copyright holder instead of it falling on the content poster or host site. I agree completely that the content hosting sites should be granted safe harbor and be dumb pipes. For some reason, it seems like everyone focuses only on making the hosting services more accountable instead of the alleged copyright holders as a potential answer. I'm just saying forget the posters and the hosters, and make the copyright holders be the ones with all the burden. That's how it was pretty much set up in the early days of copyright anyway: you had to actively protect your copyright materials if you wished to retain them. Why should we change that now?

According to Potti, someone else had hired the reputation manager who acted on his behalf, and the service was terminated months ago anyway.

I have nothing to do with the attempt on your life!

I have a friend who knew of a reputation manager and he explained to him that you had hurt my reputation, and I wouldn't be unhappy if you were involved in an accident -- like falling out of a boat while your feet were encased in concrete.

See. It had nothing to do with me.

Here's one way to handle that.

"But I'm a superstitious man, and if some unlucky accident should befall him, if he should get shot in the head by a police officer, or if he should hang himself in his jail cell, or if he's struck by a bolt of lightning, then I'm going to blame some of the people in this room. " -- Don Corleone

What would you suggest? I'm being 100% serious; how do we solve this? Generally, people just say "get rid of the DMCA claim system entirely," which doesn't constitute a solution. The DMCA claim system exists to make safe-harbor possible, and without safe-harbor, every web-service that hosts content created by users can be sued for anything that infringes someone's copyrights.

Of course, some would then say that content hosts should be granted safe harbor period. That's little more than a license to infringe, because part of the DMCA claim system is the ability to get contact data for the people who uploaded the data. Without the ability to get contact data, you're effectively saying that people can infringe copyright just by using a third-party web-host.

What exactly is the solution here? How do you weed out the bad users of the system, while still making the system work? You can't make the content host verify every single claim manually by actually looking at the content, for two reasons. One is obvious: is a huge time sink. The other is that hosts aren't equipped to make this kind of determination. Copyright law is subtle sometimes, and they're not copyright lawyers.

A penalty-based system sounds like it might work; after some number of "malicious" takedown notices, a particular entity loses the right to use the takedown system. The problem here is the one from above: how do you determine that a notification is "malicious". What if the notice was filed in good faith, but it isn't considered infringement? Only courts can determine whether a particular bit of infringement falls under fair use, and not all cases are clear-cut. Do we really want to give YouTube the power to decide this kind of thing?

One simpler fix is to allow counter-notices to restore the content in 3 days time, instead of taking 14. After which point, a lawsuit must be filed in order to get the content removed again.

There are no difficulties here. The most obvious and obviously solved problem is that DMCA takedowns require the material to be removed before the accused can even respond to the accusation. Remove that blatant bit of corporate welfare, and 99% of these problems go away.

The current takedown system is arguably broken, and I don't understand why more people don't host their content outside of the reach of the DMCA, or at least with an ISP/hosting company that doesn't play these knee-jerk games.

I'm sure the definition of "outside the reach of the DMCA" is variable and subject to change, though.